CONTENTS - Central Public Works Department

SECTION 33
33.5.4 Finality of decision on EOT
According to this clause, the opinion of the Engineer-in-charge as to whether the grounds shown for
extension of time are or are not reasonable, are final. If the Engineer-in-charge declines to grant extension
of time, it is not within the competence of the contractor to challenge the soundness of the opinion by
reference to arbitration under the relevant clause. The Engineer-in-charge should give extension as may
be, in his opinion, necessary or proper. His opinion as to whether the period of extension granted by him
is proper, is not, however, final. The contractor can seek arbitration on the question whether the period of
extension granted is or is not proper.
33.5.5 Grant of EOT when the contractor does not apply
The period during which the contract remains valid is a matter of agreement and if the period originally
set for the completion of the work comes to an end, nothing short of agreement of the party can extend the
subsistence and validity of the contract. When the period fixed for the completion of the contract is about
to expire, the question of extension of the contract may be considered at the instance of the contractor or
the Department or of both. The extension, in order to be binding, will have to be by parties to agreement
express or implied. It, therefore, follows that if the extension of time is granted by the Executive Engineer
suo-moto, and such extension of time is accepted by the contractor either expressly or implied by his
action before and subsequent to the date of completion, the extension of time granted by the Executive
Engineer is valid. It is, therefore, necessary that the Executive Engineer grants extension of time even
when the contractor does not apply for extension of time in order to keep the contract alive. If the contractor
refuses to act upon the extension granted by the Executive Engineer, it will attract the provisions of
clauses 2 & 3 of the agreement.
33.5.6 Compensation for delayed performance
The compensation for delayed performance, on account of which extension of time is granted by the
Executive Engineer, which could be leviable under clause 2 would be a distinct matter. The decision to
levy compensation under clause 2 would depend on:
(i) Prior notice as contemplated by Section 55 of the Indian Contract Act, 1872.
(ii) Fault/delay/hindrance being attributable to the contractor, and
(iii) Proof of the loss occasioned thereby (in case it is challenged by the contractor before the Arbitrator).
33.5.7 Hindrances to be carefully weighed before deciding on EOT
(1) The contractor in his application for extension of time, points out the various delays and the lapses
on the part of the Department that he considers unavoidable hindrances. The Engineer-in-charge,
while recommending or granting cases for extension of time, generally accepts these reasons for
delay to be correct. The contractor may claim damages or compensation in arbitration, for
prolongation of work due to defaults or lapses on the part of the Department. When such cases
come before the Arbitrator, the action of the Engineer-in-charge in accepting the reasons for
extension of time may assist the evidence for the claims of the contractor for damages etc.
(2) Though there may be delays and lapses on the part of the Department, yet at the same time there
are also delayed lapses on the part of the contractor. For such delays during the stipulated or
extended period of completion, the contractor is responsible, but these are also to be taken into
account by the Divisional Officer while recommending or granting extension. To safeguard
Government’s interest these lapses on the part of the contractor should invariably be clearly
mentioned by the Engineer-in-charge while granting/recommending extension of time.
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